After a lengthy discussion and a surprise reversal of Supervisor Robert Rivas’ position, on Aug. 22 the San Benito County Board of Supervisors voted unanimously to continue public hearings on the cannabis businesses ordinance until Nov. 7 in order to present an ordinance for consideration or even a ban or moratorium. Supervisors also pushed to immediately prosecute illegal marijuana operations.
The turnabout began when Supervisor Jerry Muenzer stated that the Planning Commission was not educated about the ordinance before considering it. He said that information needs to be provided either by consultant Victor Gomez or the cannabis ad hoc committee meeting with the commission to bring it up to date. Gomez said he had reached out to the planning commission, suggesting he would be available to meet with the commission as a whole or on an individual basis to discuss cannabis policy and the ordinance.
Supervisor Mark Medina said he knew there would be revenue for the county once the ordinance is approved, but he still had issues concerning the unknown expenses that would come along with the ordinance. He said that even if the county had a perfect plan, if law enforcement was not in place, it would fail.
“In this case, kicking the can down the road is good,” he said. “I still believe we can bring something into place, but one of the things I want to make clear, these 20 or so people that applied for the amortization and went through the process, I want to make sure we don’t lose them. I also want to make sure people who are doing this illegally the sheriff has the right and backing 100 percent from us to enforce the law. They have no legal reason to be growing.”
After announcing the reversal in his stance on the ordinance, Rivas apologized to the board, stating that he did so because he is not a rubber stamp, but instead is a policymaker, and that he felt they weren’t prepared to move forward based on a lack of public safety resources.
“This is a huge risk for our county and I don’t want to jeopardize our public safety (personnel), and what the threat is to our community,” he said and then asked San Benito County Sheriff Darrin Thompson to highlight challenges his department will be facing.
Thompson said there was a vacuum in enforcement due to a lack of regulatory oversight that has allowed marijuana growers to expand far beyond the community’s expectations. He said that while most people see the duties of a sheriff as one of law enforcement, he sees it as a guardian of the democratic process. He said, however, that the democratic process has caused ambiguity in the community, the sheriff’s department, prosecutors and even juries as they struggle to understand how cannabis laws are to be enforced.
“The only group that claims to have total clarity are the attorneys that represent the (cannabis) industry,” Thompson said. “The state has allowed local governments to bring clarity, in black and white what is grey, so we can contour our policies and what occurs in our community.”
Thompson said with any regulatory scheme, staff is necessary to implement and enforce it, and that would fall on his department. He said, though, that his staffing levels have been reduced from a high in 2010 when the entire department was funded for 96 positions, down to 46 positions in 2012. He said the department has basically operated with skeleton crews for years. Thompson said he realized there were potential revenues to be gained by partnering with the marijuana industry that would provide additional staffing of the sheriff’s office, but he explained any increase in staffing would not be instantaneous because the average time from recruitment to placing a deputy sheriff on the streets is 14 months. He encouraged the board to move cautiously in order to bring clarity to the issue.
Medina asked the sheriff what he needed from the board to gain his trust that they would back him in enforcing the law against illegal marijuana growers. Thompson said there is too much ambiguity in the state laws and they will continue to be in a state of flux. He said there wasn’t anything the board could do to hurry the state along to clarify the law. He said, though, that to be able to enforce any laws the board creates they need to spell out specifically what they expect his department to do. He also asked the board to devise a mechanism to educate the community on its unmet expectations in regards to the progress in moving the ordinance forward. He suggested individual board members could hold meetings with their constituents in order to explain the status of the ordinance. Finally, he said the board must allow enough lead time to hire and train law enforcement to carry out its wishes.
Barbara Thompson, county interim counsel, advised the board members that they also need to meet to figure out how to augment the civil enforcement side of the ordinance because violations will mostly be prosecuted as civil crimes. Code enforcement will be issuing notices of violation citations against all operations within two weeks, she added. Supervisor Anthony Botelho said citations should not be sent to those operations that had filed for amortizations. He said only illegal operations should be served and shut down immediately.
“They don’t have any rights,” Botelho said. “The people who filed for amortization should have a hearing. We don’t want to have 300 of these things for people who just set up shop and expect to be in business. They’ve made a joke of our ordinance and a joke of San Benito County.”
Botelho told her enforcement should be carried out the very next day to “bring fear to their hearts through law enforcement.” She responded that the county has to go through a process of issuing the citation, and if the operators do not respond, it would take up to 10 days to go to court to secure an abatement order that would clear the way to remove the plants. Medina interjected that there would also be a $1,000 fine per day.
During public comments, Jack Kirk said the community is nervous about so many illegal marijuana grows and that laws are not being enforced. He agreed with Rivas and applauded the board for slowing down despite pressure from some to move forward. Cannabis lobbyist Sean Donohoe, a recent applicant for one of the city’s cannabis permits, said he was disappointed because other jurisdictions have somehow managed to figure out how to implement ordinances. He conceded that the ordinance is flawed and contains paradoxes of law. He reminded the board that there is a state grant to cover law enforcement costs if an ordinance is in place. He also said it is an incorrect assumption that the cannabis is a cash-only industry, that there are now banks willing to work with them. Hollister resident Marty Richman commented that the county asked people to apply for permits and pay fees. He said a major issue is that there is no penalty for not applying.
“If there’s no penalty for not applying, why would anybody apply?” he wondered. “You have an obligation to give some value to the people who applied. In fairness, the people who followed the rules have to have some advantage. These other people said, ‘This is a joke, I’ll just go and plant my stuff. Nobody’s enforcing anything.’ If you don’t enforce the law nobody’s going to comply.”
Elia Salinas, a cannabis proponent, said she did not feel the ordinance is ready to move forward and that it was unfortunate that those who applied for amortizations did not have to pay fees. She said even though she is a cannabis advocate, she is also an advocate for regulations.
“I’m disappointed they did not pay any fees because they’re about to go into harvest and the county is not going to get one dime from any of that money,” Salinas said. “There’s no tax structure, there’s no development agreement.”
She said people call her all the time about marijuana grows and that she has contacted landowners to tell them that because of the ban and if they did not apply, they are illegal, but they continue to do it because of the money. She questioned whether the $1,000-per-day fines also went to property owners because the marijuana operations are on the land through the owners’ permission. She said both should be fined.
Rivas said once there is a determination of who “is legal and who is not,” those who are illegal should be prevented from any cultivation activities forever. Muenzer agreed with Rivas and Salinas, as well, adding that property owners also should be disqualified forever from participating in the industry.
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